Laxton v. Gap Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
June 6, 2003

UNITED STATES COURT OF APPEALS Charles R. Fulbruge III
For the Fifth Circuit Clerk

No. 02-40406

JOANNA LAXTON,

Plaintiff-Appellant,

VERSUS

GAP INC., doing business as OLD NAVY,

Defendant-Appellee.

Appeal from the United States District Court
For the Eastern District of Texas, Tyler Division

Before KING, Chief Judge, DAVIS, Circuit Judge, and VANCE*,

District Judge.

VANCE, District Judge:

*District Judge of the Eastern District of Louisiana, sitting by designation.
 Plaintiff-Appellant Joanna Laxton appeals from the district

court's order granting defendant-appellee Gap, Inc. judgment as a

matter of law in this case brought under the Pregnancy

Discrimination Act. For the following reasons, we REVERSE and

REMAND.

I. BACKGROUND

Drawing all inferences in favor of the non-moving party, as

we must when reviewing the grant of judgment as a matter of law,

the factual background of this lawsuit is as follows. In March

1999, Gap recruited Laxton, the general manager of a Stein Mart

department store in Tyler, Texas, to become the general manager

of an Old Navy store that Gap intended to open in Tyler. Laxton

had worked for Wal-Mart for eight years, climbing the management

ranks and helping to open a Wal-Mart Super Center in Henderson,

Texas. She then became an assistant manager for Stein Mart and

was soon promoted to general manager. At first, Laxton declined

Gap's offer, but Gap persisted. Only after Gap offered her

$45,000 plus bonuses – $10,000 more than she made at Stein Mart –

did Laxton accept. Two Stein Mart employees followed her to the

new Old Navy store to become assistant managers.

After accepting the offer but before starting work, Laxton,

aged 39 at the time, learned that she was pregnant. On her first

day of work, March 29, 1999, she informed Lisa Haverstick, Gap's

Regional Assistant Manager, of her pregnancy. She informed her

2
direct supervisor, Karen Jones, of her pregnancy on June 1, 1999.

That was "the first real time [Laxton] was able to sit down with

[Jones] and talk to her." It was also the day before the Old

Navy store was due to open. Specifically, Laxton informed Jones

that she was pregnant and was due around Thanksgiving. Laxton

did not discuss with Jones her plans for maternity leave. She

had not yet thought through the issue and was not yet familiar

with Gap's maternity leave policy. Jones became visibly angry.

Laxton testified that Jones "didn't appreciate the fact, I guess,

that she was going to have to have someone come in during the

holidays and fill in for me." Jones said, "You realize this

means that I have to pull other management out of other stores to

cover your store, when, basically, you know, this store should

have been taken care of. What management do you think we're

supposed to use?" After this conversation, Jones was "usually

unpleasant" toward Laxton.

Under Laxton's management, the store timely opened on June

2, 1999. By all accounts, the store earned strong revenues. It

won a national tech vest sales contest, and Laxton received

monthly bonuses of over $1,000.

On July 8, 1999, the mall notified Laxton that it needed to

cut power to her store between 9:00 and 10:00 p.m. The store

usually closed at 9:00 p.m, after which time employees served the

customers that remained in the store, closed all the registers,

counted the money, and opened a back door to receive deliveries.

3
Laxton feared that problems could arise if the store's power was

cut while her employees were counting money because the back door

would be open for deliveries and the alarm system would be dead.

She called Jones to ask for permission to close the store 30

minutes early. Jones told Laxton to keep the store open. Laxton

decided to close the store early anyway. For this incident,

Jones gave Laxton a "Written Warning," the first strike in Gap's

"three-strikes-you're-out" policy.

On July 29, 1999, Jones and Carla Dotto, an employee at

Gap's corporate headquarters, told Laxton that a "Final Written

Warning" – strike two – was on its way. Mary Carr, the Zone

Human Resource Manager, also played a significant role in

preparing this warning. In the Final Written Warning, Gap

charged Laxton with four violations of company policies and

procedures: (1) exiting the store by the back door; (2)

displaying unacceptable behavior toward an employee, Kerri

Vallery, over the store's walkie-talkie system; (3) neglecting to

inform the regional office that she had taken a sick day; and (4)

hiring a bank robber. The supervisors did not discuss these

charges with Laxton in the July 29 conversation. Rather, Laxton

learned of the nature of the charges only when she received a

copy of the Final Written Warning by fax on Saturday, August 14,

1999, which was a day off for her. The warning alarmed and

frightened her, and she suspected that she was the target of

pregnancy discrimination. She believed that the asserted

4
violations were false, and that she "hadn't been able to air

[her] side of the story to anyone."

As to the allegation that she exited the store by the back

door, Laxton testified that once she learned that this was a

violation of store policy, she never did so again. As to the

walkie-talkie incident, Laxton testified that Vallery had

disobeyed her orders about where to place sales associates on the

floor of the store. As to the sick day, Laxton testified that

she called in to report the sick day, did not reach anyone, and

did not leave a message because she intended to talk with

headquarters again soon anyway. When she discovered that her

hours for the week had been entered improperly, she made efforts

to correct them. Regardless, Laxton, despite her pregnancy, was

working over 70 hours a week while being paid on a salary based

on 40 hours per week, and Gap produced no records indicating a

problem with Laxton's overall attendance at work. Finally,

Laxton testified that she never hired a bank robber. Vallery

recommended that Laxton invite the job applicant to an

orientation session. Before the orientation session, Laxton was

"amazed" to discover through a conversation with her husband that

the applicant was rumored to have robbed a bank. As soon as she

discovered the problem, the applicant withdrew his application

himself. At no time was the "bank robber" on Gap's payroll.

Before Laxton received the Final Written Warning on August

14, 1999, Laxton's supervisors sent Peg Inglis, a Zone Trainer,

5
to Laxton's store for a visit on August 9, 1999. Based on

conversations with three of the store's four assistant managers,

Inglis reported that the store suffered from low employee morale.

Inglis also reported violations of store policy, including: (1)

exceeding the $75 discretionary spending limit by paying $85 for

pizza for employees; (2) asking two employees to wear unpurchased

Old Navy tech vests during a sales promotion; and (3) failing to

permit employees to take lunch breaks. Inglis's report indicates

that termination was on Gap's mind, for she wrote that "if Laxton

stays in position. . . ." Inglis spoke with Laxton during the

store visit, but she did not raise with Laxton the issues of

employee morale or the asserted violations of store policy.

Instead, Inglis inquired as to Laxton's plans for maternity

leave.

At trial, Laxton provided explanations for the three

violations cited by Inglis: (1) she bought the pizza for

employees during a busy and profitable Tax Free Weekend after

Jones had directed her to "do whatever it takes" to make the

weekend a success; (2) she directed two employees to wear tech

vests during a nationwide tech vest sales contest that Laxton's

store won and, relatedly, Gap had "sent down a directive" to have

employees wear unpurchased backpacks to increase backpack sales;

and (3) Laxton explained that the breaks were not recorded

properly because the store's automated punch clock system was

broken and employees were too busy with Tax Free Weekend to fill

6
out time sheets manually.

Laxton had previously scheduled a vacation day for Monday,

August 16, 1999, the first business day for Gap after Laxton

received the Final Written Warning. Gap has a "Zero Tolerance"

policy against discrimination, instructing employees to call a

human resources representative with concerns. Gap also makes a

toll-free telephone line available for anonymous reports. On

August 16, Laxton called Chazz Pono, her human resources

representative, to discuss her suspicion that she was the target

of pregnancy discrimination. The record reflects that Pono took

no action.

On August 17, 1999, Carlos Licona, a Gap auditor,

arrived at Laxton's store unannounced. Licona testified that he

was not aware of Laxton's performance-related issues before his

store visit. Inglis's report, however, indicated that the report

would be forwarded to Licona. Licona discovered the same

violations of store policy that Inglis had identified – the pizza

money, the tech vests, and the lunch breaks. Like Inglis, Licona

did not discuss the violations with Laxton. He instead called

Carr, who, together with Dotto, directed Licona to terminate her.

This was the first time that Licona, a store auditor, had ever

been asked to fire an employee. Gap replaced Laxton with a male.

Laxton filed suit in federal district court on October 10,

2000, charging Gap with violating Title VII of the Civil Rights

Act of 1964, as amended by the Pregnancy Discrimination Act of

7
1978 (the "PDA"), 42 U.S.C. § 2000e, et seq. The district court

conducted a jury trial beginning on November 5, 2001. At the

close of Laxton's case, Gap moved for judgment as a matter of law

pursuant to Rule 50 of the Federal Rules of Civil Procedure. The

district court denied Gap's motion. The jury returned a verdict

in favor of Laxton, awarding $127,000 in back pay, $57,000 in

front pay, $100,000 in mental anguish, and $200,000 in punitive

damages. Gap timely filed a renewed motion for judgment as a

matter of law and an alternative, conditional motion for new

trial or remittitur. The district court granted the motion for

judgment as a matter of law on the issue of liability and did not

reach the issue of damages. The district court also granted the

conditional motion for a new trial and did not reach the issue of

remittitur. Laxton timely appeals.

II. STANDARD OF REVIEW

We review a district court's grant of judgment as a matter

of law de novo, applying the same standard as the district court.

See Wallace v. Methodist Hospital System, 271 F.3d 212, 218 (5th

Cir. 2001). Judgment as a matter of law is appropriate if "there

is no legally sufficient evidentiary basis for a reasonable jury

to find for that party on that issue." FED. R. CIV. P. 50(a).

This occurs when the "'facts and inferences point so strongly and

overwhelmingly in favor of one party that the Court believes that

reasonable men could not arrive at a contrary verdict.'"

8
Wallace, 271 F.3d at 219 (quoting Rubinstein v. Adm'rs of the

Tulane Educ. Fund, 218 F.3d 392, 401 (5th Cir. 2000)); see also

Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969). As we

review the record, we "'must draw all reasonable inferences in

favor of the nonmoving party, and [we] may not make credibility

determinations or weigh the evidence.'" Russell v. McKinney

Hospital Venture, 235 F.3d 219, 222 (5th Cir. 2000) (quoting

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120

S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000)). We must disregard

evidence favorable to the moving party that the jury is not

required to believe. See id. The court gives credence to

evidence supporting the moving party that is uncontradicted and

unimpeached if that evidence comes from disinterested witnesses.

See Wallace, 271 F.3d at 219. Finally, more than a mere

scintilla of evidence is required to render the grant of judgment

as a matter of law inappropriate. See id.

III. ANALYTICAL FRAMEWORK

Title VII makes it unlawful for an employer "to fail or

refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual's race, color, religion, sex, or

national origin." 42 U.S.C. § 2000e-2(a). As amended by the

first clause of the PDA, Title VII defines the term "because of

9
sex" as including, but not limited to, "because of or on the

basis of pregnancy, childbirth, or related medical conditions."

42 U.S.C. § 2000e(k). The second clause of the PDA further

provides that "women affected by pregnancy, childbirth, or

related medical conditions shall be treated the same for all

employment-related purposes, including receipt of benefits under

fringe benefit programs, as other persons not so affected but

similar in their ability or inability to work." Id. The Supreme

Court has held that the first clause of the PDA is not limited by

the specific language in the second clause. California Fed. Sav.

and Loan Ass'n v. Guerra, 479 U.S. 272, 285, 107 S.Ct. 683, 691,

93 L.Ed.2d 613 (1987); Newport News Shipbuilding and Dry Dock

Company v. EEOC, 462 U.S. 669, 678 n.14, 103 S.Ct. 2622, 2628

n.14, 77 L.Ed.2d 89 (1983). Congress intended the PDA to provide

relief for working women and to end discrimination against

pregnant workers. See Guerra, 479 U.S. at 286, 107 S.Ct. at 692.

The PDA does not, however, "'protect a pregnant employee from

being discharged for being absent from work even if her absence

is due to pregnancy or to complications of pregnancy, unless the

absences of nonpregnant employees are overlooked.'" Stout v.

Baxter Healthcare Corp., 282 F.3d 856, 860 (5th Cir. 2002)

(quoting Dormeyer v. Comerica Bank-Ill., 223 F.3d 579, 583 (7th

Cir. 2000)); see also Wallace, 271 F.3d at 223 (noting that the

PDA requires an employer to ignore an employee's pregnancy, but

10
not her absence from work, unless the employer overlooks

comparable absences of non-pregnant employees).

A claim brought under the PDA is analyzed like any other

Title VII discrimination claim. Urbano v. Continental Airlines,

Inc., 138 F.3d 204, 206 (5th Cir. 1998). Title VII

discrimination can be established through either direct or

circumstantial evidence. See Wallace, 271 F.3d at 219. Laxton's

case is built on the latter, which means that it is analyzed

under the familiar McDonnell-Douglas framework. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973). Under this framework, the plaintiff must

first create a presumption of discrimination by making out a

prima facie case of discrimination. See Wallace, 271 F.3d at

219. The burden then shifts to the employer to produce a

legitimate, nondiscriminatory reason for her termination. See

id. This causes the presumption of discrimination to dissipate.

See id. The plaintiff then bears the ultimate burden of

persuading the trier of fact by a preponderance of the evidence

that the employer intentionally discriminated against her because

of her protected status. See id.

To carry this burden, the plaintiff must produce substantial

evidence indicating that the proffered legitimate

nondiscriminatory reason is a pretext for discrimination. See

Reeves, 530 U.S. at 143, 120 S.Ct. at 2106. The plaintiff must

11
rebut each nondiscriminatory reason articulated by the employer.

Wallace, 271 F.3d at 220. A plaintiff may establish pretext

either through evidence of disparate treatment or by showing that

the employer's proffered explanation is false or "unworthy of

credence." Id.; Reeves, 530 U.S. at 143, 120 S.Ct. at 2106. An

explanation is false or unworthy of credence if it is not the

real reason for the adverse employment action. See Sandstad v.

CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002).

Evidence demonstrating that the employer's explanation is false

or unworthy of credence, taken together with the plaintiff's

prima facie case, is likely to support an inference of

discrimination even without further evidence of defendant's true

motive. Id. at 897; Russell, 235 F.3d at 223. No further

evidence of discriminatory animus is required because "once the

employer's justification has been eliminated, discrimination may

well be the most likely alternative explanation...." Reeves, 530

U.S. at 147-48, 120 S.Ct. at 2108-09. The "rare" instances in

which a showing of pretext is insufficient to establish

discrimination are (1) when the record conclusively reveals some

other, nondiscriminatory reason for the employer's decision, or

(2) when the plaintiff creates only a weak issue of fact as to

whether the employer's reason was untrue, and there was abundant

and uncontroverted evidence that no discrimination occurred. See

Russell, 235 F.3d at 223 (citing Reeves, 530 U.S. at 148, 120

12
S.Ct. at 2109); Rubinstein, 218 F.3d at 400. A decision as to

whether judgment as a matter of law is appropriate ultimately

turns on "'the strength of the plaintiff's prima facie case, the

probative value of the proof that the employer's explanation is

false, and any other evidence that supports the employer's case

and that properly may be considered on a motion for judgment as a

matter of law.'" Wallace, 271 F.3d at 220 (quoting Reeves, 530

U.S. at 148-49, 120 S.Ct. at 2109).

IV. APPLICATION OF THE ANALYTICAL FRAMEWORK

The parties do not dispute on appeal that Laxton made out a

prima facie case of pregnancy discrimination.1 Instead, the

parties dispute whether Laxton produced substantial evidence of

pretext. Evidence is "substantial" if it is "'of such quality

and weight that reasonable and fair-minded men in the exercise of

impartial judgment might reach different conclusions.'" Long v.

Eastfield College, 88 F.3d 300, 308 (5th Cir. 1996)(quoting

Boeing, 411 F.2d at 374).

A. PROFFERED LEGITIMATE REASON FOR DISCHARGE

Gap proffers that Laxton repeatedly violated store policy

1
In the district court, the parties agreed that Laxton's
prima facie case required that (1) she was a member of a
protected class, (2) she was qualified for the position she lost,
(3) she suffered an adverse employment action, and (4) she was
replaced by an employee who is not in the protected class, or, in
cases of employment discipline, that others similarly situated
were more favorably treated. Joanna Laxton v. Gap, Inc. d/b/a
Old Navy, No. 6:00-CV-605, slip op. at 5 (E.D.Tex. Oct. 31,
2001).

13
and alienated those who worked for her, the cumulative effect of

which justified her termination. (Appellee's Brief, at 10.) The

conduct occurred over a six-week period from July 8, 1999 to

August 17, 1999. First, Gap cites the store-closing incident

that took place on July 8. Second, Gap cites the violations

listed in the Final Written Warning – the back door exit, the

walkie-talkie incident, the sick day, and the bank robber.

Third, Gap cites the complaints of assistant managers, primarily

those reported by Inglis. Fourth, and finally, Gap cites the

alleged violations of store policy identified by Inglis and

Licona – the pizza money, tech vests, and lunch breaks. Gap

asserts that Laxton's multiple violations were "too much, too

soon." (Id. at 26.)

B. EVIDENCE OF PRETEXT

Turning to Laxton's showing of pretext, we begin by defining

the contours of our inquiry. Our inquiry is "'whether [Gap's]

perception of [Laxton's] performance, accurate or not, was the

real reason for her termination.'" Evans v. City of Houston, 246

F.3d 344, 355 (5th Cir. 2001) (quoting Shackelford v. Deloitte &

Touche, LLP, 190 F.3d 398, 408-09 (5th Cir. 1999)). It is not

whether Gap's proffered reason was an incorrect reason for her

discharge. Sandstad, 309 F.3d at 899. Our concern is whether

the evidence supports an inference that Gap intentionally

discriminated against Laxton, an inference that can be drawn if

14
its proffered reason was not the real reason for discharge.

Therefore, to survive Gap's motion for judgment as a matter of

law, Laxton must produce evidence permitting the jury to

disbelieve that Gap's proffered reason was its true motivation.

"'The factfinder's disbelief of the reasons put forward by the

defendant (particularly if disbelief is accompanied by a

suspicion of mendacity) may, together with the elements of the

prima facie case, suffice to show intentional discrimination.'"2

Reeves, 530 U.S. at 147, 120 S.Ct at 2108 (quoting St. Mary's

Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125

L.Ed.2d 407 (1993)).

Laxton rebuts Gap's proffered justification for her

discharge with evidence that it is false or unworthy of credence.

Wallace, 271 F.3d at 220. She concedes that certain violations

of store policy took place. She admits to closing the store

early (although she testified that doing so was justified) and to

exiting out the back door (although she testified that when she

did so she did not know this violated store policy). Gap,

however, did not terminate her for these violations. It proffers

that it terminated Laxton for the "cumulative effect" of many

2
Gap asserts that the jury may find that its proffered
justification is "unworthy of credence" only if Laxton proves
"mendacity." This overstates Laxton's burden. As the Supreme
Court noted in Reeves, a plaintiff need only bring evidence that
enables the jury to disbelieve that the employer's proffered
justification truly motivated the adverse employment action.
Reeves, 530 U.S. at 147, 120 S.Ct. at 2108.

15
violations, and Laxton casts doubt on this proffered

justification in two ways. First, she brings evidence

challenging the substance of violations, i.e., evidence

demonstrating their falsity. Second, she brings other evidence

that undermines the overall credibility of Gap's proffered

justification.

First, Laxton rebuts the substance of violations asserted by

Gap, including the allegation that Laxton hired a bank robber.

Laxton invited the applicant to an orientation on the

recommendation of Vallery. Before the session, however, Laxton

was "amazed" to learn through her own inquiry that the applicant

was rumored to have robbed a bank. The applicant subsequently

withdrew his application and was never on Gap's payroll.

A second charge that the jury could have reasonably found to

be false is that of employee complaints. Jones testified that

she made multiple calls to assistant managers and that employees

lodged numerous complaints against Laxton. Yet Gap produced no

contemporaneous written documentation of any employee complaints,

despite testimony that the corporation abides by rigorous record-

keeping policies. Gap did not even produce written documentation

of the walkie-talkie incident referred to in the Final Written

Warning. Further, even assuming that there were complaints (such

as those reported by Inglis), Laxton testified that a good,

strong manager will draw employee complaints. The walkie-talkie

16
incident presents a perfect example. On that occasion, Vallery

allegedly lodged a complaint against Laxton after being rebuked

over the store's walkie-talkie system for attempting to override

Laxton's decision as to where to place sales employees on the

floor. Notably, Jones, who gave Laxton a Written Warning for not

following orders when Laxton closed the store early, gave Laxton

a Final Written Warning for disciplining an assistant manager for

not following her orders. The jury may well have construed

Laxton's rebuke of the assistant manager to be appropriate.

Moreoever, Laxton's ability to manage employees is corroborated

by the fact that two employees followed Laxton from Stein Mart to

Gap.

Laxton challenges the tech vest violation and the pizza

money violation on the grounds that they involved conduct that

Gap authorized and that is so trivial as to be unworthy of

credence. Gap directed Laxton to have employees wear unpurchased

backpacks to increase backpack sales, but then cited Laxton for

directing two employees to wear unpurchased tech vests during a

tech vest sales contest in which her store placed first in the

nation. Additionally, in preparation for Tax Free Weekend, Jones

directed Laxton to "do whatever it takes." Laxton therefore

exceeded her $75 discretionary spending authority by a minimal

amount by spending $85 on pizza for employees. The jury could

have inferred, as did Laxton, that Jones authorized this

17
spending.

The jury could have also reasonably concluded that Laxton

made an adequate effort to report her sick day. She testified

that she called a supervisor that day, but that when nobody

answered she did not leave a message. She testified that she

attempted to correct her hours after she learned that they had

been improperly entered. Finally, the jury could have reasonably

concluded that Laxton permitted employees to take lunch breaks.

Laxton testified that her employees took breaks but that the

breaks were not recorded properly because the store's automated

punch clock system was broken and employees were too busy with

Tax Free Weekend to fill out time sheets manually. Further

undermining this allegation is that the employees allegedly did

not take lunch breaks over Tax Free Weekend, which was the same

weekend that Laxton purchased pizza for lunch.

Second, in addition to her attack on the substance of these

violations, Laxton brings evidence that undermines the

credibility of Gap's proffered justification for her discharge.

The evidence indicates that if Gap were genuinely concerned about

Laxton's asserted performance-related problems, it would have

permitted Laxton the opportunity to explain or to improve her

conduct, but it did not do so. Jones testified to the common

sense notion that, from a business standpoint, it makes sense to

try to utilize corrective action with an under-performing general

manager before firing her. Yet, as the alleged violations of

18
store policy occurred, Laxton's supervisors, including Jones,

Carr and Dotto, did not discuss them with her. Supervisors

discussed only a single employee complaint with her – the

arguably justified walkie-talkie incident. Notably, no

supervisor ever discussed with Laxton the problem of lunch

breaks, which Carr testified was of particular concern to the

company. Laxton did not even receive a copy of the Final Written

Warning until Saturday, August 14, just one working day before

her discharge. Perhaps most telling in this regard was Inglis's

store visit. During the visit, Inglis failed to discuss with

Laxton the "serious" problems of employee morale that she

discovered. Instead, Inglis discussed Laxton's plans for

maternity leave.

Only six weeks elapsed between Laxton's first Written

Warning and her termination, and during that time her supervisors

never gave her the chance to explain her conduct or improve it.

Had Gap bothered to do so, progress might have been made. For

example, as soon as Laxton learned that exiting by the back door

violated store policy, she did not do so again.3

3
The district court reduced Laxton's showing of pretext to
the argument that Gap violated its own corrective action policy,
which calls on supervisors to discuss violations of store policy
with the employee. The district court noted, correctly, that an
employer's disregard of its policies "does not of itself
conclusively establish that. . . a nondiscriminatory explanation
for an action is pretextual." EEOC v. Texas Instruments Inc.,
100 F.3d 1173, 1182 (5th Cir. 1996). Laxton, however, does not
assert that Gap's failure to follow its own policy is of itself
evidence of pretext. Rather, Gap's failure to discuss alleged

19
 Further, the jury may have determined that Gap's witnesses

lacked credibility. The record indicates that Jones may have

come across as a difficult witness and that Licona was not

credible. Licona testified that he did not know that Laxton was

pregnant on the day that he terminated her. On that day, Laxton

was visibly pregnant, as a contemporaneous photograph confirms.

Licona also identified handwriting on his store visit log as that

of Laxton, from which the jury could have inferred that Laxton

was on notice of the violations that he found. Laxton, however,

denied that it was her handwriting, and her testimony was

corroborated by that of an assistant manager who testified that

it was her handwriting and not Laxton's. Finally, Licona

testified that he did not see a copy of Inglis's report before he

visited Laxton's store. The jury may have reasonably inferred

that he had seen a copy because the report indicated that a copy

should be forwarded to him and because he identified the exact

violations of store policy that Inglis cited in the report.

Upon consideration of all of the evidence, the jury may have

reasonably concluded that Jones, Carr and Dotto solicited and

exaggerated complaints from Laxton's assistant managers, issued a

Written Warning and a Final Written Warning, and dispatched

violations with a recently-hired general manager of a successful
store despite its admission that this makes business sense casts
doubt on its proffered reason regardless of Gap's policy in this
regard. That Gap violated its own policy to that effect is
merely icing on the cake.

20
Inglis and Licona for store visits in an effort to compile a

laundry list of violations to justify a predetermined decision to

terminate Laxton. This would explain why Gap asserted some

violations that are false and others that involved conduct that

was arguably authorized. It would also explain why Gap, a

company whose goal is to earn a profit, took issue with conduct

like the tech vests and the pizza money that helped it to achieve

its overarching goal. It would also explain Inglis's revealing

statement in her report that "if Laxton remains in position. . .

." Finally, it would explain why Gap rushed to fax Laxton a copy

of the Final Written Warning on Saturday, August 14, which was a

day off for Laxton. The jury may have inferred that Gap wanted

Laxton to have the warning in hand before Licona's store visit on

August 17, 1999, because Gap knew that it was going to terminate

Laxton on that day regardless of what violations Licona

discovered.

Gap's proffered justification becomes even less credible

when viewed in light of the strength of Laxton's prima facie

case. The factfinder may consider evidence establishing Laxton's

prima facie case, as well as inferences properly drawn therefrom,

in its determination of whether Gap's proffered explanation is

pretextual. Reeves, 530 U.S. at 143, 120 S.Ct. at 2106. Part of

Laxton's prima facie case is that she was qualified for the

position of general manager. Before joining Gap, she had a

21
successful career in retail with Wal-Mart and Stein Mart. When

Gap recruited Laxton away from Stein Mart to open the new Old

Navy store, Laxton declined. Only after Gap offered her a

considerable raise did Laxton accept. Laxton's store opened on

time and, under her direction, earned strong revenues. Gap

rewarded her with monthly bonuses of over $1,000. By mid-August,

when she was fired, the store had already surpassed the month's

quota to qualify for a bonus. In short, the store had just

opened, Laxton was working more than 70 hours a week, and she was

instructed by her supervisors to do whatever it takes. If the

store's revenues are any indication, that is exactly what she was

doing. It was a stressful but successful environment. Yet,

despite Laxton's qualifications as a general manager and despite

her success in making the new Old Navy store profitable, Gap

proffers that it terminated her for a laundry list of

questionable violations, virtually none of which Gap bothered to

discuss with her. Conveniently, Gap left itself just enough time

to permit a new general manager to settle into the job before the

busy holiday season. Based on the evidence presented, the jury

could have reasonably concluded that Gap's proffered reason for

discharge was not its real reason.

C. ADDITIONAL EVIDENCE OF DISCRIMINATION

Although Laxton's showing of pretext is, under Reeves,

sufficient for her to survive Gap's motion for judgment as a

22
matter of law, she supplements her case of discrimination with an

oral statement of her supervisor, Karen Jones. When Laxton

informed Jones that she was pregnant and was due around

Thanksgiving, Jones became visibly angry. Laxton testified that

Jones "didn't appreciate the fact, I guess, that she was going to

have to have someone come in during the holidays and fill in for

me." Jones said, "You realize this means that I have to pull

other management out of other stores to cover your store, when,

basically, you know, this store should have been taken care of.

What management do you think we're supposed to use?"

An oral statement exhibiting discriminatory animus may be

used to demonstrate pretext or, as is the case here, it may be

used as additional evidence of discrimination. Russell, 235 F.3d

at 225. The remark must, first, demonstrate discriminatory

animus and, second, be made by a person primarily responsible for

the adverse employment action or by a person with influence or

leverage over the formal decisionmaker.4 Id.; see also Sandstad,

309 F.3d at 899.

4
Before Reeves, this court applied the four-part test
articulated in Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir.
1996), to determine whether a remark constitutes evidence of
discrimination. We continue to apply the CSC Logic test when a
remark is presented as direct evidence of discrimination apart
from the McDonnell-Douglas framework. See Auguster v. Vermilion
Parish Sch. Bd., 249 F.3d 400, 404-05 (5th Cir. 2001). Citing
Reeves, however, the Russell court did not apply the CSC Logic
test to a remark introduced as additional evidence of
discrimination. Russell, 235 F.3d at 226.

23
 As to the first inquiry, the jury is permitted to infer

discriminatory animus from Jones's remark. In Maldonado v. U.S.

Bank, 186 F.3d 759, 767 (7th Cir. 1999), the plaintiff notified

her employer that she was pregnant and that she was due to give

birth during the busy summer months. Her employer terminated her

the next day. The employer proffered that it fired her not

because she was pregnant, but because her pregnancy-induced

absence would make her unavailable to work at a busy time. After

noting that the PDA permits an employer to fire a pregnant

employee for excessive absenteeism, the Seventh Circuit held that

the PDA bars an employer from discharging an employee based on an

unjustified presumption that the employee's pregnancy will render

her unable to fulfill her job expectations. The Maldonado court

held that an employer cannot take anticipatory action unless it

has "a good faith basis, supported by sufficiently strong

evidence, that the normal inconveniences of an employee's

pregnancy will require special treatment." Maldonado, 186 F.3d

at 767; see also Troy v. Bay State Computer Group, Inc., 141 F.3d

378, 381 (1st Cir. 1998) (affirming jury verdict in favor of

terminated pregnant employee where employer might have acted on

unlawful, stereotypical speculation that pregnant women are poor

attendees); Deneen v. Northwest Airlines, Inc., 132 F.3d 431, 437

(8th Cir. 1998) (affirming jury verdict in favor of terminated

pregnant employee where employer may have "discriminatorily

24
assumed [the plaintiff] was suffering a condition that would

interfere with her job"). When Jones made her remark on June 1,

she did not know what the impact of Laxton's pregnancy would be.

Not even Laxton knew, as she "really hadn't given [maternity

leave] a lot of thought because we were just trying to make it

through getting the store opened." She was not yet familiar with

Gap's maternity leave policy. It is reasonable to infer from

Jones's negative reaction to the news of Laxton's pregnancy that

she harbored a stereotypical presumption about Laxton's ability

to fulfill job duties as a result of her pregnancy. Gap's

reliance on Wallace is off-the-mark, for in that case the

employee's supervisor expressed frustration with the employee's

third pregnancy, stating that "I don't know how to classify you

because you were gone three months and you'll be gone three

months again." Wallace, 271 F.3d at 222. By contrast, Jones had

no knowledge as to how long Laxton would take maternity leave.

Discriminatory animus can be inferred from Jones's willingness to

assume the worst.

As to the second inquiry, Laxton produced sufficient

evidence to enable the jury to conclude that Jones influenced

Carr and Dotto, the individuals principally responsible for the

adverse employment action. Courts do not "blindly accept the

titular decisionmaker as the true decisionmaker." Russell, 235

F.3d at 227. Rather, the discriminatory animus of a manager can

25
be imputed to the ultimate decisionmaker if the decisionmaker

"acted as a rubber stamp, or the 'cat's paw,' for the subordinate

employee's prejudice." Id. (citing Shager v. Upjohn, Co., 913

F.2d 398, 405 (7th Cir. 1990)). The relevant inquiry is whether

Jones "had influence or leverage over" Carr and Dotto's

decisionmaking. Id. at 226. Jones issued Laxton's Written

Warning. Carr issued Laxton's Final Written Warning, but Carr

testified that Jones served as her primary source of information.

Gap makes the somewhat implausible assertion that Carr and Dotto

did not rely on the two warnings when they decided to terminate

Laxton, but instead relied solely on the "independent

investigations" of Inglis and Licona. This position is

inconsistent with Gap's proffered justification for Laxton's

discharge, namely, the cumulative effect of violations of company

policy including those cited in the Written Warning and Final

Written Warning. The degree to which Carr and Dotto relied on

the "independent investigations" is a question of fact for the

jury. Mato v. Baldauf, 267 F.3d 444, 450 (5th Cir. 2001). Given

that the Written Warning and the Final Written Warning represent

Strikes One and Two in Gap's "three-strikes-you're-out policy,"

the jury could have reasonably concluded that these warnings

influenced Carr and Dotto's decisionmaking.

Gap's reliance on Wallace for the proposition that Jones did

not influence the final decisionmakers is, again, off-the-mark.

26
Like Jones, the declarant in Wallace was the terminated

employee's direct supervisor. Also like Jones, the Wallace

declarant participated in the factfinding leading to the

plaintiff's termination. In both cases, the supervisors'

discriminatory animus arguably colored their factfinding. The

final decisionmakers in Wallace, however, did not rely on the

Wallace declarant's factfinding to terminate the plaintiff

because the plaintiff in that case freely admitted to the final

decisionmakers that she committed the violation for which they

fired her. Wallace, 271 F.3d at 218. Here, by contrast, Laxton

never admitted to Carr and Dotto that she committed the

violations charged in the Final Written Warning. Indeed, Carr

herself testified that she relied on Jones for the facts

underlying these violations. The jury could have therefore

reasonably inferred that Jones "had influence or leverage over"

Carr and Dotto, such that it would have been proper for the jury

to impute Jones's discriminatory animus to Carr and Dotto.

Russell, 235 F.3d at 226.

D. MORE THAN A MERE SCINTILLA

We find that the parties presented the jury with two

competing versions of Laxton's termination. Laxton produced

evidence of pretext and a discriminatory remark from which the

jury could reasonably infer that intentional discrimination took

place. This is legally sufficient evidence that amounts to more

27
than a mere scintilla. It is the province of the jury to judge

the credibility of witnesses and resolve conflicts in the

evidence, and we will not second-guess its rejection of Gap's

proffered justification. Russell, 235 F.3d at 225.

Gap asserts that Laxton's case must fail because she

produced no evidence that discriminatory animus motivated her

termination. Since Reeves, however, when a plaintiff makes a

sufficient showing of pretext, no further evidence of

discriminatory animus is required to withstand a motion for

judgment as a matter of law. Reeves, 530 U.S. at 147-48, 120

S.Ct. at 2108-09. This is not a "rare" exception to Reeves where

(1) the evidence conclusively reveals some other,

nondiscriminatory reason for the discharge or (2) the plaintiff's

showing as to pretext is weak and the employer brings "abundant

and uncontroverted" evidence that its decision was not motivated

by discriminatory animus. Russell, 235 F.3d at 223; see also

Price v. Fed. Express Corp., 283 F.3d 715, 723 (5th Cir. 2002)

(dicta); Rubinstein, 218 F.3d at 400. The first exception does

not apply because the evidence does not conclusively reveal some

other reason for discharge. The second exception does not apply

because Laxton's showing of pretext is not weak. Further, there

is not "abundant and uncontroverted" evidence that there was no

discrimination. Gap asserts that the number of supervisors

identifying Laxton's performance-related problems mitigates

28
against the possibility that Gap's decision was discriminatory.

Although this may be true, it is insufficient to warrant a

departure from Reeves.

Gap makes two additional arguments that are equally

unavailing. First, Gap asserts that Carr, a key final

decisionmaker, did not know that Laxton was pregnant. This

argument is flatly contradicted by Carr's own testimony that she

reviewed Inglis's report, in which Laxton's plans for maternity

leave were discussed. (We note that Gap's position in this

regard contradicts its earlier position that Carr relied entirely

on the independent investigations of Inglis and Licona and did

not rely on Jones.) Second, and finally, Gap asserts that

Laxton's case amounts to impermissible second-guessing of its

business judgment. See Mato, 267 F.3d at 452 (noting that anti-

discrimination laws are not vehicles for judicial second-guessing

of business decisions). Were Laxton to assert that Gap should

not have terminated her for the cumulative effect of her

violations, she would be second-guessing its business judgment.

But that is not Laxton's argument. Instead, she brings evidence

that Gap did not terminate her for that reason. This argument

does not impermissibly challenge Gap's business judgment. It

permissibly challenges Gap's credibility.

Ever mindful of the recent mandate of Reeves "not to

substitute [the court's] judgment for that of the jury and not to

29
unduly restrict a plaintiff's circumstantial case of

discrimination," Russell, 235 F.3d at 223 n.4, we conclude that

“[Gap’s] evidence is not of such magnitude that a reasonable jury

could only find in their favor.” Id. at 225. Accordingly, we

reverse the district court's grant of judgment as a matter of law

on the issue of liability.

In the district court, Gap moved for judgment as a matter of

law on each of the three types of damages awarded: punitive

damages, mental anguish, and back pay and front pay. The

district court did not reach these arguments and the parties do

not urge us to decide them on appeal.5 We therefore remand to

the district court to address whether the evidence supports the

jury's damage awards.6

V. MOTION FOR NEW TRIAL OR REMITTITUR

Gap moved for a new trial or, in the alternative,

remittitur. This court has held that when a jury verdict results

from passion or prejudice, a new trial is the proper remedy.

Brunnemann v. Terra Int'l., Inc., 975 F.2d 175, 178 (5th Cir.

1992). When a damage award is merely excessive or so large as to

5
Aside from jurisdictional questions, we do not generally
consider arguments that have not been urged by the parties on
appeal. Crowe v. Smith, 151 F.3d 217, 237 n.30 (5th Cir. 1998).
6
Our determination as to liability should not be construed
to suggest that the evidence supports an award for punitive
damages. See, e.g., Kolstad v. Am. Dental Ass'n, 527 U.S. 526,
119 S.Ct. 2118, 144 L.Ed.2d 494 (1999); Hardin v. Caterpillar,
Inc., 227 F.3d 268 (5th Cir. 2000).

30
appear contrary to right reason, remittitur is the appropriate

remedy. See id. The district court below granted Gap's motion

for a new trial and did not reach the issue of remittitur.

Joanna Laxton v. Gap, Inc. d/b/a Old Navy, No. 6:00-CV-605

(E.D.Tex. Mar. 1, 2002).

The grant of a new trial is reviewed for abuse of

discretion. See Thomas v. Texas Dep't of Criminal Justice, 297

F.3d 361, 368 (5th Cir. 2002). A decision to grant a new trial

is, however, accorded less deference than a decision denying the

grant of a new trial. See Brady v. Fort Bend Cty., 145 F.3d 691,

713 (5th Cir. 1998). Courts grant a new trial when "'it is

reasonably clear that prejudicial error has crept into the record

or that substantial justice has not been done.'" Sibley v.

Lemaire, 184 F.3d 481, 487 (5th Cir. 1999) (quoting Del Rio

Distributing, Inc. v. Adolph Coors Co., 589 F.2d 176, 179 n.3

(5th Cir. 1979)). In granting a new trial, the district court

weighs all of the evidence, and it need not view it in the light

most favorable to the nonmoving party. See Smith v. Transworld

Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985). A new trial is

warranted if the evidence is against the great, and not merely

the greater, weight of the evidence. See Shows v. Jamison

Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982).

The district court granted Gap's motion for a new trial for

two reasons. First, the district court found that Laxton "failed

31
to rebut the nondiscriminatory reasons for her termination

advanced by [Gap] by pointing to departures from company policy."

Joanna Laxton v. Gap, Inc. d/b/a Old Navy, No. 6:00-CV-605 at 3

(E.D.Tex. Mar. 1, 2002). We have already determined that Laxton

did indeed rebut the proffered nondiscriminatory reason for her

termination. Second, the district court found that Laxton did

not show that pregnancy-based animus motivated the alleged

departures from company policy. In light of Laxton's showing of

pretext and the Supreme Court's decision in Reeves, the district

court's insistence on evidence of discriminatory animus

constitutes an abuse of discretion. Reeves, 530 U.S. at 147-48,

120 S.Ct. at 2108-09; Sandstad, 309 F.3d at 897. We therefore

reverse the district court's grant of a new trial.7

VI. CONCLUSION

The district court's grant of judgment as a matter of law

and its grant of a new trial are reversed. We remand for

proceedings consistent with this opinion.

REVERSED.

7
The district court did not reach the issue of a remittitur,
but may do so on remand pending its determination of Gap's motion
for judgment as a matter of law on the damage awards.

32